Update/Context: When this article was first published, the question of whether to pursue a patent was already complex. Today, as the pace of innovation accelerates and patent costs continue to rise, it's even more important to carefully consider if a patent is truly the best course of action. While patents can protect ideas, they are not always necessary, wise, or cost-effective, especially for small businesses or individual inventors. It depends on the individual situation and there are other strategies that may be more suitable than the patent
The quote, "everything that can be invented has been invented", is generally attributed to Charles H. Duell, commissioner of US patent office in 1899 although the quote’s origin is unclear. One researcher found the quote in an 1899 issue of a comedy magazine, “Punch” in an article about the oncoming new century. According to a publication called “Government Technology” in August of 2011, the 8-millionth patent was issue; indeed, everything has not been invented.
Being awarded a patent after coming up with a new idea or invention and navigating through a long and expensive process is often viewed at the “gold standard” of the legitimacy of the idea or invention. For many new inventors, the goal of patenting the idea or invention has been at the top of the list. The thinking is that the patent will both validate the idea and protect the inventor from the theft or copying of the idea. While there are no clear-cut guidelines pertaining to when or even if to patent a new idea or invention, the patent should almost never be at the top of the list.
Contrary to many beliefs, from a practical standpoint, the patent does not offer the iron-clad protection against theft and copying for several reasons. First, while the cost of getting the patent--$15,000 to $60,000—is very high, the cost of litigation to stop a patent infringement could be ten times that amount. Second, many times clever copiers can create a product that performs the same function, with just enough design changes to avoid infringement.
At the same time, government employees at the patent office deeming the new idea worthy of a patent, does not always translate to market validation; that anyone wants to buy the new product. A local banker tells a story of an out-of-state inventor that spent his life savings and mortgaged his house to develop and patent a more accurate rain gage—it leaned into the wind to catch more of the drops. He had paid for scientific data proving his device was more accurate. The only problem was that no one cared enough to be willing to buy it.
I know of at least one and maybe two inventors that have put their projects on the shelf because they don’t have the money to apply for a patent. It’s too bad that they may never know whether their product would add value for anyone in the marketplace or not. Maybe it would be better to develop what we call a minimum viable product that would be functional enough to test market to see if anyone wants it even at a small risk of someone “stealing” the idea.
A good patent attorney is more of a patent counselor, not just taking money to mechanically apply for the patent on your behalf, but helping you decide when and if to patent at all. We have a relationship with just such an attorney. We also know a patent counselor who helps people apply for their own patents at a fraction of the cost of using an attorney.
